{¶
1} Ribhy Ihrabi appeals from a judgment of the
Montgomery County Court of Common Pleas, which overruled his
objections to the magistrate's decision and granted the
State's petition for forfeiture of currency. The trial
court ordered that $34, 255 be forfeited as
"proceeds" and an "instrumentality." For
the following reasons, the trial court's judgment will be
affirmed in part, reversed in part, and remanded for further
proceedings, as described below.

I.
Background and Procedural History

{¶
2} Ihrabi operated a business known as A&R1
Smoke Shop on Dayton-Yellow Springs Road in Fairborn. The
business sold tobacco products, "herbal incense, "
smoking accessories such as pipes, soda pop and other
non-alcoholic beverages, and some clothing items and costume
jewelry. Prior to October 17, 2011, approximately 50% of the
business's sales could be attributed to the sale of
synthetic marijuana.

{¶
3} The record reflects that synthetic marijuana is
the term for a variety of different chemical compounds that
produce effects similar to marijuana; the compounds are
usually sprayed onto plant material. Synthetic marijuana is
usually smoked, and depending on the specific compound, the
synthetic marijuana can be much more potent than marijuana.
The synthetic drug known as "bath salts" is
different from synthetic marijuana; it is derived from the
drug Cathinone, which comes from the Khat plant. Bath salts
typically come in powdered form, and their side effects and
complications are more severe than those from synthetic
marijuana.

{¶
4} On October 17, 2011, the sale of
controlled-substance analogs, such as synthetic marijuana,
became illegal in Ohio. See 2011 Sub.H.B. 64;
State v. Shalash,148 Ohio St.3d 611,
2016-Ohio-8358, 71 N.E.3d 1089 (concluding that H.B. 64
criminalized controlled-substance analogs). After that time,
Sergeant Rhett Close of the Riverside Police Department
investigated the sale of synthetic marijuana and bath salts.
His investigation led him to Ihrabi, and on April 19, 2012,
Riverside police officers searched Ihrabi's store,
vehicle, apartment, and storage unit. Numerous items were
seized, including approximately $34, 255 in United States
currency; $30, 000 of that money was located in a trash can
in Ihrabi's apartment in Montgomery County.

{¶
5} On April 25, 2012, the State of Ohio filed a
petition for civil forfeiture, pursuant to R.C. 2981.05,
[1]
seeking the forfeiture of the $34, 255 that had been seized
by the police; the petition was assigned a civil case number,
2012-CV-2995, which is the matter on appeal. The State
alleged that the currency was either contraband, proceeds,
and/or an instrumentality of drug possession or drug
trafficking. In his Answer, filed on July 9, 2012, Ihrabi
admitted that the police had removed approximately $34, 255
in cash, as well as records pertaining to his business, but
he denied the State's additional allegations.

{¶
6} In November 2012, a grand jury declined to indict
Ihrabi.

{¶
7} On December 27, 2012, Ihrabi moved for the
release of his seized property. Ihrabi itemized fifteen items
of personal property that were seized by the Riverside
police, including paperwork, jars, receipts, packages of
"Maya Blue" Spice, stickers, and cash found in
various locations. Ihrabi noted that the State sought to
forfeit only the seized currency, that the tangible property
seized in Greene County was not necessary to the prosecution
of charges in Montgomery County, and that a no true bill was
filed in Montgomery County concerning potential criminal
charges. Ihrabi further stated that the seized items were
necessary for him to conduct his business.

{¶
8} A forfeiture hearing on the State's civil
petition was held before a magistrate on August 21 and 22,
2013, following which the parties submitted post-trial
memoranda. On January 9, 2014, the magistrate found, by a
preponderance of the evidence, that Ihrabi had engaged in
aggravated trafficking of drugs by selling a controlled
substance or controlled substance analog. The magistrate
further found that "the totality of the circumstances
suggests that the money was 'proceeds' of the sale of
synthetic marijuana and/or an 'instrumentality that would
be used to purchase additional synthetic marijuana for future
sale at the Smoke Shop." The magistrate concluded that
the money was subject to forfeiture as proceeds and an
instrumentality, because the seized cash was traceable to
Ihrabi's trafficking in synthetic marijuana generally,
even if it could not be traced to specific transactions.
Finally, with respect to the instrumentality finding, the
magistrate found that forfeiture was not disproportionate to
the offense of trafficking synthetic marijuana.

{¶
9} Ihrabi filed objections to the magistrate's
ruling. On December 2, 2014, the trial court overruled the
objections and adopted the magistrate's ruling. Ihrabi
appealed from the trial court's decision, State v.
Ihrabi, 2d Dist. Montgomery No. 26537, but we dismissed
that appeal for lack of a final appealable order.
Id. (Decision and Final Judgment Entry (Feb. 20,
2015)). On August 24, 2016, the trial court filed an amended
final entry, which overruled Ihrabi's objections, adopted
the magistrate's decision, and ordered that the $34, 255
be forfeited as proceeds and as an instrumentality and that
the currency be distributed as follows: (1) $8, 563.75 to the
Prosecuting Attorney's account, and (2) $25, 691.24 for
use and/or disposition by the law enforcement trust funds of
the City of Riverside.

1. There was no competent evidence Defendant sold banned
tobacco products at his store or that he was aware anyone
else did so.

2. Plaintiff failed to establish that money seized from
Defendant's store, automobile and apartment was subject
to forfeiture.

In
essence, Ihrabi claims that the trial court erred in
concluding that the seized currency was property subject to
forfeiture.

{¶
12} R.C. Chapter 2981 permits "[a] law
enforcement officer [to] seize property that the officer has
probable cause to believe is property subject to
forfeiture." R.C. 2981.03(A)(2). A State or political
subdivision acquires provisional title to property subject to
forfeiture, upon commission of an offense giving rise to
forfeiture. R.C. 2981.03(A)(1). This provisional title is
subject to claims of third parties and a final forfeiture
adjudication. R.C. 2981.03(A)(1); State v. Jamison,
2d Dist. Montgomery No. 23211, 2010-Ohio-965, ¶ 21.

{¶
13} R.C. 2981.02 allows the forfeiture of
contraband, proceeds, and certain instrumentalities.
See R.C. 2981.01(B)(13) (defining "property
subject to forfeiture"); State v. Moreno,2017-Ohio-479, __N.E.3d__, ¶ 20 (2d Dist.); State v.
Recinos, 5th Dist. Richland No. 14CA9, 2014-Ohio-3021,
¶ 21. In cases involving unlawful goods,
"proceeds" means any property derived directly or
indirectly from an offense. R.C. 2981.01(B)(11)(a). "
Proceeds' may include, but is not limited to, money or
any other means of exchange." Id. For purposes
of the forfeiture statute, an "offense" is defined
as "any act or omission that could be charged as a
criminal offense or a delinquent act, whether or not a formal
criminal prosecution or delinquent child proceeding began at
the time the forfeiture is initiated." R.C.
2981.01(B)(10). An "instrumentality" is
"property otherwise lawful to possess that is used in or
intended to be used in an offense." R.C. 2981.01(B)(6).
Money can also constitute an instrumentality. Id.

{¶
14} A prosecuting attorney may pursue forfeiture of
seized property in a criminal proceeding under R.C. 2981.04,
a civil proceeding under R.C. 2981.05, or both. R.C.
2981.03(F). Criminal forfeiture is initiated by including in
the charging instrument a specification consistent with R.C.
2941.1417 or by providing the defendant with "prompt
notice, " in conformity with Crim.R. 7(E). R.C.
2981.04(A)(1) and (A)(2). In contrast, a civil forfeiture
proceeding is initiated by the prosecutor's filing of a
civil complaint requesting the forfeiture of property that is
located within the jurisdiction of the prosecutor's
political subdivision and that is alleged to be connected to
an offense as contraband, proceeds, or an instrumentality.
R.C. 2981.05(A). The forfeiture proceedings against Ihrabi
were civil in nature.

{¶
15} "In a civil forfeiture proceeding brought
under R.C. 2981.05, the prosecutor must prove by a
preponderance of the evidence that the property is subject to
forfeiture because the property meets the definition of
contraband, proceeds, or an instrumentality. See
R.C. 2981.05(D). The trial court shall issue a civil
forfeiture order if the court determines that the prosecutor
has met his burden under the statute and a finding is made,
when required, that forfeiture is not disproportionate to the
severity of the offense. Id." In re Forfeiture of
Property of Rhodes, 2d Dist. Montgomery No. 25464,
2013-Ohio-3046, ¶ 9.

A.
Evidence that Ihrabi Committed an Offense

{¶
16} At the forfeiture hearing, the State presented
three witnesses: (1) Sergeant Close, (2) Corey Hernandez, a
former employee of A&R1 Smoke Shop, and (3) Laureen J.
Marinetti, the chief forensic toxicologist at the Miami
Valley Regional Crime Lab (MVRCL). Ihrabi testified on his
own behalf, and offered two additional witnesses: (1) Teresa
Budd, another former employee of A&R1 Smoke Shop, and (2)
Richard Rosinski, a distributor.

{¶
17} Sgt. Close testified that the investigation into
Ihrabi's sale of synthetic marijuana stemmed from the
officer's investigation of One Stop (which Close also
referred to as Short Stop), a convenience store operated by
Hossein Mirdamad on Linden Avenue in Riverside. In November
2011, Close and other officers searched One Stop, pursuant to
a search warrant, and found a large quantity of bath salts
and synthetic marijuana. At that time, Mirdamad had
identified "Robbie" as his supplier.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;{&para;
18} A second search of One Stop was conducted in
April 2012, and Mirdamad told investigators that Robbie was
having another person, "Steve, " supply for him.
The officers later identified "Steve" as Ghaleb
Salah. Salah delivered bath salts to Mirdamad as part of a
controlled buy, and the officers found hundreds of units of
synthetic marijuana, in addition to bath salts, inside
Salah's vehicle; the box in the vehicle was marked
"A&R1 Smoke Shop." ...

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